Working from home (“WFH”) is no longer the exception, with certain categories of employees able to request flexible working arrangements under the National Employment Standards and many employees having informal individual arrangements. But the right to request to WFH is about to become available to all employees under the Clerks – Private Sector Award 2020 (“Clerks Award”).

The Fair Work Commission (“FWC”) has now decided the Clerks Award should include a WFH term and has published a draft for comment. This will be the first time the right to request to WFH will be included in a modern award. The decision has wide-reaching implications, given that 1.56 million employees (representing 14.3 per cent of all employees) are covered by the Clerks Award.

Will employees have a right to work from home?

No – at least not under the proposed WFH term.

The FWC rejected proposals that would have given employees a presumptive right to WFH. Instead, the proposed WFH term will allow an employee to request to WFH, with any arrangement depending on employer agreement.

How will an employee make a request?

Requests under the proposed WFH term must be in writing and identify the proposed WFH days. If the employer agrees, then a WFH agreement must be made, in writing, specifying:

• the day(s) the employee will be WFH;
• the location where work is to be performed when WFH;
• the start date;
• any changes to terms of the modern award (e.g. the time for meal breaks or altered start times); and
• the means by which the arrangement may be terminated by either party.

Employers must keep the agreement as a time and wages record and give the employee a copy.

Can requests be refused by an employer?

Yes – an employer can refuse a WFH request.

Employees who are dissatisfied with a decision to refuse a WFH request may access the dispute resolution procedures available under the Clerks Award.

The right to request a WFH arrangement is likely to constitute a workplace right under the Fair Work Act 2009 (Cth). Accordingly, if an employer refuses a WFH request, they must not treat the employee adversely because the employee made the request.

What about overtime?

Existing overtime obligations continue. Overtime remains payable where additional work is performed at the employer’s direction, and employers must keep records of directed overtime.

WFH should not be treated as permission to work outside agreed hours without authorisation and record-keeping controls.

What are the broader WFH reforms?

The Victorian Government has introduced a stronger statutory WFH proposal for employees based in Victoria. If enacted, the reforms would give eligible employees a right to work from home for up to two days per week where reasonable and if their role can be performed remotely. This change was due to commence this year, but it is now expected to commence on 1 July 2027 to allow for further consultation. You can read our article on the Victorian WFH proposal here.

At the federal level, the Fair Work Amendment (Right to Work from Home) Bill 2025 proposes a broader right to request up to two WFH days each week, with employers able to refuse only in limited circumstances. The Bill, which is a private senator’s bill, remains before the Senate, with a committee report due on 14 October 2026.

Key takeaways – what should employers do now?

Many employers will already be well placed to respond to WFH requests and significant changes to existing procedures will not be required. However, before the new Clerks Award WFH term takes effect, employers should review WFH arrangements, policies and approval processes to ensure there is a consistent process for assessing requests.

Once the WFH term commences, employers should assess each request on its merits and record reasons for approvals and refusals.

Because disputes about WFH requests can be dealt with under the Clerks Award’s dispute resolution procedure, records should be maintained. Employers should retain records of requests, discussions and decisions, and avoid arbitrary refusals that may increase exposure through the Clerks Award’s dispute processes.

Employers with enterprise agreements that operate by reference to the Clerks Award will also need to give consideration to the new WFH term as part of future bargaining.